The plaintiffs' bar and associated health groups have put a spotlight on the food and beverage industry. In addition to product liability and consumer fraud claims, we’ve seen an increase in municipalities looking to curb the consumption of certain foods or beverages, media interest in obesity claims, the vilification of sugar and other food substances, concerns about genetically modified organisms (GMOs), and the use of addiction models to explain people’s consumption choices.
Whether faced with individual personal injury lawsuits or multidistrict litigation, manufacturers, distributors and retailers can rely on Shook, Hardy & Bacon because our attorneys understand the context driving these claims. We have defeated class certification, defended multiple consumer class actions alleging unfair or deceptive trade practices and obtained the dismissal of false-advertising claims preempted by federal nutrition-labeling laws. Our food and beverage team has helped clients successfully resolve matters arising from nationwide foodborne illness outbreaks; “all natural,” “healthy,” “non-GMO,” and “0 Grams of Trans Fat” labeling claims; and consumer or workplace exposure to substances such as diacetyl, 4-methylidmidazole (4-MEI) and azodicarbonamide.
Widely recognized as a premier litigation firm in the United States and abroad, Shook also helps food industry clients develop early assessment procedures that allow for quick evaluation of potential liability and the most appropriate response in the event of suspected product contamination. As part of our regulatory review work on labeling, we analyze health and nutrient content claims to ensure that they accurately represent ingredient and nutrition information and include proper disclosures. We regularly counsel food manufacturers, suppliers and transporters subject to Food and Drug Administration regulations, ranging from pathogen prevention to facility inspections, product recalls and crisis management.
Representative Matters
Consumer Fraud Litigation
Shook attorneys have defended multiple consumer class actions in which plaintiffs claim grocery retailers violated the Florida Deceptive and Unfair Trade Practices Act by failing to disclose whether any pollen was removed from honey products during ordinary processing.
After minimal discovery, Shook successfully settled a nationwide consumer fraud class action against the manufacturer of kombucha tea products in California state court.
Shook represents an orange juice manufacturer in numerous class actions consolidated in one MDL in the Western District of Missouri, alleging violation of state consumer fraud laws.
False Advertising, Labeling Claims and Marketing Practices
Shook attorneys assisted a snack maker facing litigation alleging that it misled consumers by labeling and promoting its products as “all natural,” “healthy” and “non-GMO.” Without admitting liability, the company agreed to settle a class action by establishing a modest settlement fund and reformulating its labeling claims.
A federal court in California agreed with Shook attorneys that state-law false-advertising claims involving snack foods labeled “0 Grams of Trans Fat” were preempted by federal nutrition-labeling laws. The court dismissed the claims without leave to amend.
We defeated class certification in a Missouri case involving alleged misrepresentations about the artificial sweeteners used in soft drinks.
Shook represented a major beer brewing company and related entities facing a class action seeking recovery for money given to children by their parents and guardians and purportedly misspent on the purchase of alcoholic beverages. An appeals court affirmed the lower court’s dismissal of the claims for plaintiffs' failure to allege an actionable injury and lack of standing. The court also found that the defendants’ alleged youth marketing did not “actionably interfere with the parent-child relationship.”
Shook represented another brewing company in a different jurisdiction facing claims that the defendants targeted their marketing to underage consumers. The plaintiffs sought disgorgement of profits earned from the alleged illegal sale of alcoholic beverages. The court dismissed the plaintiffs’ claims alleging violation of state unfair competition laws and subsequently dismissed the remaining claims. Other similar matters were dismissed before trial.
Shook currently handles numerous class actions consolidated in an MDL in the Eastern District of New York alleging that the advertising and marketing of certain water beverages is misleading under state consumer fraud laws. A motion to dismiss was granted in part, and class certification is currently pending. Shook also represents this client in copycat class action litigation pending in courts throughout Canada.
We represented a beverage manufacturer in a consumer fraud class action in the Southern District of Illinois over the allegedly deceptive marketing of its beverages. After completion of limited discovery, the judge granted the company’s motion for summary judgment and denied plaintiffs’ motion for class certification as moot.
Food Safety Litigation
Shook provides food safety counsel to a major food products distributor and represented it in a matter involving the alleged contamination of fresh produce. Shook also defends foodborne illness cases for one of the largest retailers in the United States.
Shook represents a company involved in litigation alleging that diacetyl exposure caused a debilitating lung condition known as bronchiolitis obliterans. Diacetyl is the chemical used in butter flavoring that was long used by microwave popcorn manufacturers.
Shook successfully settled a class action for soft drink companies alleging that certain products could become contaminated with benzene when exposed to excessive light or heat.
Our attorneys represented one of the nation’s largest restaurant chains in a case involving drink contamination claims. We succeeded in getting the case dismissed in its entirety within three months.
Shook currently represents a multinational corporation facing claims that E. coli-tainted food at one of its restaurants caused injury to two minors.
Proposition 65
Shook is working with clients facing claims that they have violated California’s Safe Drinking Water and Toxic Enforcement Act (Prop. 65) by using in their food products chemicals known to the state to cause cancer or reproductive toxicity. One case involves claims relating to 4-methylimidazole (4-MEI), which is used in caramel coloring, and the other involves claims relating to azodicarbonamide (the “yoga mat” chemical), used in many commercial baked goods as a dough conditioner.
